Such an instruction alerts a jury that conscious avoidance of knowledge in order to have a defense at trial suggests a sufficient guilty knowledge to satisfy the knowing element of the crime.United States v. Baz, 442 F.3d 1269, 1271-72 (10th Cir. 2006) (quotations and citations omitted). Here, Chavez denied knowing the money he received was drug money and a reasonable jury could find from the evidence presented at trial that he either knew the money was drug money or engaged in deliberate acts to avoid such knowledge.

Because our Circuit currently applies de novo review, we will continue to apply it unless we decide otherwise after an en banc hearing. In United States v. Baz, 442 F.3d 1269, 1271 (10th Cir.2006), we held that a deliberate-ignorance instruction is appropriate where a defendant “denies knowledge of an operant fact but the evidence, direct or circumstantial, shows that defendant engaged in deliberate acts to avoid actual knowledge of that operant fact.” Id. at 1271–72.

The instruction "alerts a jury that conscious avoidance of knowledge in order to have a defense at trial suggests a sufficient guilty knowledge to satisfy the knowing element of the crime." United States v. Baz, 442 F.3d 1269, 1272 (10th Cir. 2006) (internal quotation marks omitted). The instruction in this case read:

A deliberate ignorance instruction is "appropriate when a defendant denies knowledge of an operant fact but the evidence, direct or circumstantial, shows that defendant engaged in deliberate acts to avoid actual knowledge of that operant fact." United States v. Baz, 442 F.3d 1269, 1271-72 (10th Cir. 2006). Hillman correctly points out that a deliberate ignorance instruction should be used sparingly unless the government has produced sufficient evidence supporting the instruction.

This is particularly true when the evidence is viewed, as it must be, in the light most favorable to the government. See United States v. Baz, 442 F.3d 1269, 1272 (10th Cir. 2006).

The Court concludes that the United States' proposed deliberate-ignorance instruction is inappropriate. "[A] deliberate-ignorance instruction is appropriate where a defendant 'denies knowledge of an operant fact but the evidence, direct or circumstantial, shows that defendant engaged in deliberate acts to avoid actual knowledge of that operant fact.'" United States v. Sorensen, 801 F.3d 1217, 1233 (10th Cir. 2015)(citing United States v. Baz, 442 F.3d 1269, 1271 (10th Cir. 2006)). The Tenth Circuit has stated that a deliberate-ignorance jury instruction is "appropriate upon two showings: '(1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact.'"

Similarly, the suppression of the Government's evidence as to the marijuana's odor does not preclude a jury from finding that Defendant knowingly possessed this controlled substance based on other, circumstantial evidence. See, e.g., United States v. Baz, 442 F.3d 1269, 1272 (10th Cir. 2006) (concluding that a jury instruction on deliberate ignorance was warranted based on suspicious circumstances where there was no mention of the defendant's ability to smell the odor of the marijuana he was transporting). In this regard, I note that the Government already has presented evidence regarding the presence of a false compartment in Defendant's trailer, as well as irregularities in his logbook and bill of lading, which could warrant further inquiry at trial.